Online VRA symposium: It’s time for the Court to review Section 5

The following contribution to our VRA symposium comes from Joshua P. Thompson, staff attorney with the Pacific Legal Foundation in Sacramento. He drafted PLF’s amicus brief in Shelby County v. Holder urging the Supreme Court to grant certiorari.

Ever since its adoption in 1965, Section 5 of the Voting Rights Act (Act) has been controversial. Shortly after its passage, Justice Hugo Black said that it “so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.” And while that distortion might have been warranted by circumstances in 1965 – given flagrant discrimination in the Deep South – things have changed in forty-seven years. Whether Section 5 remains constitutional today is a question the Supreme Court must address. If “current burdens … must be justified by current needs,” Congress’s 2006 reauthorization of the Act must be justified by contemporary discrimination that Section 5’s burdens can still ameliorate.

Section 5 is designed to alleviate 1965 problems

The Voting Rights Act arose out of the racial turmoil that plagued the Jim Crow South. In the two years preceding the Act, George Wallace stood in the schoolhouse door, Martin Luther King gave voice to his dream of a color-blind society, and Selma experienced Bloody Sunday. Even though ten years earlier, Browninitiated the slow decline of separate but equal, intentional discrimination remained entrenched. Federal intervention aimed at abating sweeping southern discrimination was met with southern attempts to frustrate federal interference.

Voting practices in the Deep South in 1965 were a microcosm of this racial turmoil. No better example of southern attempts to impede federal anti-discrimination measures exists than voting. By mid-century, the overt violence that denied blacks the right to vote at the turn of the century had been (largely) supplanted by devious southern legislatures. Southern legislatures employed literacy tests, grandfather clauses, poll taxes, good character tests, etc., to deprive black Americans of their right to vote. Vague standards combined with prejudiced local officials gave government plenty of discretion to ensure continued black disenfranchisement.

Federal intervention to alleviate these discriminatory southern practices had been largely toothless. The Civil Rights Acts of 1957, 1960, and 1964 all had components designed to protect the right to vote. Black registration remained relatively unchanged. By 1965, most blacks in the Deep South were still denied the right to vote, and registration of whites ran roughly fifty percentage points higher than black registration.

Against this backdrop, Congress passed the Voting Rights Act of 1965. Section 4(b) of the Act targeted the most discriminatory states and jurisdictions (those that used literacy tests and/or had low voter turnout in the 1964 election). Section 5 placed those “covered” jurisdictions under federal receivership. Any time a covered jurisdiction wanted to amend a voting practice – however trivial – it had to get permission from the federal government beforehand.

Given the rampant discrimination of the Jim Crow South, this burden seems quite reasonable. Nevertheless, when the constitutionality of Section 5 was first brought before the Court in South Carolina v. Katzenbach in 1966, the Court called it an “uncommon exercise of congressional power” that was only justified by the “exceptional conditions” of the day. Section 5 would not have been “otherwise appropriate” but for its structure targeting jurisdictions bent on “evad[ing] the remedies for voting discrimination” and violating the Fifteenth Amendment.

By targeting only those jurisdictions most defiant of constitutional protections, Section 5’s “burdens” were specifically tailored to its “needs.” Fortunately, the snug fit between the burdens – the “uncommon exercise of Congressional power” – and the needs – eliminating pervasive discrimination throughout the Deep South – had a tremendous effect on the enfranchisement of black Americans. Eliminating literacy tests, and requiring preclearance for the most discriminatory jurisdictions, immediately improved black enfranchisement. Black voter registration in Mississippi, for example, jumped from seven percent in 1964 to sixty percent a mere four years later.

Section 5’s time has passed

As could be expected, with the long-awaited enfranchisement of black voters, the Deep South experienced a dramatic cultural shift. In an article cited by Justice Clarence Thomas in Northwest Austin, Abigail Thernstrom reports on the explosion of the black middle class since 1965, the dramatic decline of white racism, and the emergence of the South as a preferred relocation destination for black Americans. “The notion that the southern states are still the racially hostile and oppressive places that they were more than four decades ago is frankly absurd.”

Alongside this sweeping cultural upheaval came scores of elected black officials, and the abandonment of the racially oppressive policies that once justified Section 5. No jurisdiction imposes a literacy test today, or a poll tax, or a grandfather clause. Today, as reported by the Northwest Austin Court, “[v]oter turnout and registration rates … approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Section 5 was so effective that there is little to distinguish the covered jurisdictions of the Deep South from the non-covered jurisdictions in the rest of the country. Allegations of discrimination are just as likely to come from non-covered jurisdictions, and “the racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.”

Further, Section 5 is ill-suited to address discriminatory voting practices of today. The systemic, race-based discrimination that made Section 5 practical in 1965 no longer exists. Moreover, modern voting problems often arise from failing to change existing practices. Voters suffer from more problems like long voting lines in minority districts, voter identification problems, poor ballot design, or outmoded technology than from active efforts by states to impose new, discriminatory practices. But Section 5 obstructs change by requiring all covered jurisdictions to undergo a costly and burdensome administrative process in order to preclear any changes with the federal government. This encourages jurisdictions to maintain their old, perhaps discriminatory, voting practices.

As addressed in Pacific Legal Foundation’s amicus brief in Shelby County(joined by the Center for Equal Opportunity and Project 21), there are other problems with Section 5 that counsel in favor of Supreme Court review: (1) the inherent tension between Section 5’s “effects test” and the Fourteenth Amendment’s guarantee of equal protection; (2) the all-too-often reality that voting practices can be deemed constitutional in a non-covered state but still be denied preclearance in a covered state; or (3) the incompatibility of Section 2’s ban on race-conscious decision making with Section 5’s requirement for race-conscious decisions. These topics are worthy of more thorough discussion, but also encompass additional reasons for the Court to review Section 5’s continued legality.

It goes without saying that in spite of Section 5’s great success in curbing discriminatory voting practices, discrimination remains. It should be equally uncontroversial that our civil rights laws should be designed to address the discriminatory voting practices of today. Section 5, born out of the extreme racial hostility of the Jim Crow South a half-century ago, has outlived its purpose. And, as Justice Thomas noted in Northwest Austin, “[a]dmitting that a prophylactic law as broad as § 5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.”

Despite the impressive cultural and political changes that have engulfed the Deep South since 1965, little has changed with Section 5. Alabama and (most of) North Carolina continue to be bound by 1964 data. When the Supreme Court decides whether to grant certiorari in Shelby County and/or Nix, it will have been nearly fifty years since Congress determined that the North Carolina and Alabama jurisdictions petitioning for review must get federal approval for any voting change. In those fifty years, a lot has changed in Alabama and North Carolina, but these changes are not reflected in the Act. If Congress isn’t going to review Section 5, it is up to the Court to decide whether such an unwieldy remedy is still required.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.